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CONFLICTING EVIDENCE OF EXISTENCE OF PUDDLE CREATED A CREDIBILITY ISSUE IN THIS SLIP AND FALL CASE WHICH COULD NOT BE RESOLVED WITHOUT TRIAL.

The First Department determined conflicting evidence in this slip and fall case, submitted by defendants in support of summary judgment, created an issue of fact for trial:

Defendants' employees both testified that the building's janitorial schedule required that the stairs where plaintiff's fall occurred be cleaned before the time of the accident, and that they personally inspected the stairs several times on the morning of the accident, finding no such puddle at any time. In contrast, however, plaintiff's testimony, which was submitted by defendants, was that at nearly the same time that defendants' employees claim to have found the stairs urine-free, she observed a puddle of urine in the same spot where she would later fall. Furthermore, plaintiff's daughter stated that she observed a puddle of urine in the same spot two hours before the accident, which was several hours after plaintiff claimed to have seen the puddle … . Accordingly, summary judgment was not appropriate because there remain issues of fact as to the credibility of defendants' employees and whether the urine puddle was extant on the stairs for six hours prior to plaintiff's accident without remediation by defendants. Mendoza v Fordham-Bedford Hous. Corp., 2016 NY Slip Op 03997, 3rd Dept 5-24-16

NEGLIGENCE (CONFLICTING EVIDENCE OF EXISTENCE OF PUDDLE CREATED A CREDIBILITY ISSUE IN THIS SLOP AND FALL CASE WHICH COULD NOT BE RESOLVED WITHOUT TRIAL)/SLIP AND FALL (CONFLICTING EVIDENCE OF EXISTENCE OF PUDDLE CREATED A CREDIBILITY ISSUE IN THIS SLOP AND FALL CASE WHICH COULD NOT BE RESOLVED WITHOUT TRIAL)

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FIXING A LEAKY ROOF NOT ROUTINE MAINTENANCE, PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION PROPERLY SURVIVED MOTION TO DISMISS.

The First Department determined defendant's motion to dismiss plaintiff's Labor Law 240(1) cause of action was properly denied. Plaintiff climbed up a permanent ladder to fix a roof leak. The ladder was wet with rain, shaky and too close to the wall. Plaintiff fell when he attempted to come back down the ladder from the roof:

… [D]efendant [is not] entitled to dismissal of the Labor Law § 240(1) claim. Plaintiff was engaged in repairing the roof, an activity to which Labor Law § 240(1) applies, and not merely in routine maintenance … . Moreover, the permanently affixed ladder that provided the sole access to plaintiff's elevated work site was a safety device within the meaning of Labor Law § 240(1) … . In view of plaintiff's testimony that the ladder shook and was wet and was too close to the wall to allow room for his feet on the rungs, defendant failed to demonstrate as a matter of law that plaintiff was provided with proper protection. Kolenovic v 56th Realty, LLC, 2016 NY Slip Op 04005, 1st Dept 5-24-16

LABOR LAW-CONSTRUCTION LAW (FIXING A LEAKY ROOF NOT ROUTINE MAINTENANCE, PLAINTIFF'S LABOR LAW 240(1) CAUSE OF ACTION PROPERLY SURVIVED MOTION TO DISMISS)

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REMOVING A CRATE FROM A FLATBED TRUCK WAS AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240(1).

The First Department determined plaintiff's motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. Plaintiff was attempting to maneuver a 1500-pound crate to a sling for removal from a flatbed truck when it fell over on him:

… [ P]reparing a six-foot-tall crate weighing at least 1,500 pounds for hoisting posed an elevation-related risk for plaintiff within the meaning of Labor Law § 240(1) … , and the crate was “an object that required securing for the purposes of the undertaking” … .

Further, there is unrebutted evidence that various devices, including wooden blocks for bracing, would have stabilized the crate while it was being maneuvered into a position to have slings placed on it for hoisting by the crane. Grant v Solomon R. Guggenheim Museum, 2016 NY Slip Op 04003, 1st Dept 5-24-16

LABOR-CONSTRUCTION LAW (REMOVING A CRATE FROM A FLATBED TRUCK WAS AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240(1))

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REVERSIBLE ERROR TO RECONSIDER THE VERDICT.

The First Department determined, in this bench trial, the court's failure to notify counsel, prior to summations, that it would consider a lesser included offense (attempted robbery) was reversible error. After the court found defendant guilty of attempted robbery, upon objection, the court allowed defense counsel to reopen his summation and issued another verdict. The First Department held the trial court did not have the power to reconsider the case after verdict:

The trial court's failure to comply with CPL 320.20(5) by not notifying the parties that it intended to consider a lesser included offense until after it rendered the original verdict, constitutes reversible error. “After formal rendition of a verdict at a bench trial, a trial court lacks authority to reweigh the factual evidence and reconsider the verdict” … . Here, it is undisputed that upon defendant's CPL 330.30 motion, the court reopened summations, and rendered a new verdict. Although this Court has previously held that failure to comply with CPL 320.20(5) constitutes harmless error when the defendant has the opportunity to address the lesser included offenses in a new summation … , the same cannot be said here where the trial court attempted to rectify its error only after it rendered the verdict. …

We agree that the double jeopardy clause bars a new trial on the original indictment. The People must secure a new indictment if they wish to pursue further prosecution on the lesser included charge … . People v Agola, 2016 NY Slip Op 04004, 1st Dept 5-24-16

CRIMINAL LAW (REVERSIBLE ERROR TO RECONSIDER THE VERDICT)/VERDICTS (CRIMINAL LAW, REVERSIBLE ERROR TO RECONSIDER THE VERDICT)/LESSER INCLUDED OFFENSE (IN A BENCH TRIAL, REVERSIBLE ERROR TO FAIL TO NOTIFY COUNSEL, PRIOR TO SUMMATIONS, OF CONSIDERATION OF A LESSER INCLUDED OFFENSE)

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PURCHASER OF UNSOLD SHARES IN A COOPERATIVE BOUND BY A STIPULATION TO WHICH PURCHASER WAS NOT A PARTY; STIPULATION RESTRICTED THE NUMBER OF BOARD MEMBERS WHO COULD BE ELECTED BY HOLDERS OF UNSOLD SHARES.

The First Department, in a full-fledged opinion by Justice Acosta, determined a purchaser of a cooperative apartment, Johnson, was bound by a pre-existing stipulation to which Johnson was not a party. The stipulation required that the holders of unsold shares in the cooperative (HUS) could elect no more than two of the five directors. Unsold shares are held by investors who do not live in the apartments:

The [relevant] documents, including Johnson’s express agreement to take subject to the provisions of the proprietary lease, which incorporated the stipulation, make clear that he was an HUS and was bound by the stipulation’s provisions, including the election restriction … .

[The holder of the unsold shares] should not be permitted to frustrate its obligations under the offering plan or stipulation by transferring its shares to puppet entities to syphon votes away from resident shareholder candidates in order to control the board well beyond the period contemplated by the Attorney General … . Indeed, there is no question that the sole purpose of [the] assign[ment of] 600 shares to Johnson just four days before the … board election was to avoid the provision that prohibited holders of unsold shares from electing more than two directors. Matter of Tiemann Place Realty, LLC v 55 Tiemann Owners Corp., 2016 NY Slip Op 04007, 1st Dept 5-24-16

CONTRACT LAW (COOPERATIVE APARTMENTS, PURCHASER OF UNSOLD SHARES IN A COOPERATIVE BOUND BY A STIPULATION TO WHICH PURCHASER WAS NOT A PARTY; STIPULATION RESTRICTED THE NUMBER OF BOARD MEMBERS WHO COULD BE ELECTED BY HOLDERS OF UNSOLD SHARES)/CORPORATION LAW (COOPERATIVE APARTMENTS, PURCHASER OF UNSOLD SHARES IN A COOPERATIVE BOUND BY A STIPULATION TO WHICH PURCHASER WAS NOT A PARTY; STIPULATION RESTRICTED THE NUMBER OF BOARD MEMBERS WHO COULD BE ELECTED BY HOLDERS OF UNSOLD SHARES)/COOPERATIVES (COOPERATIVE APARTMENTS, PURCHASER OF UNSOLD SHARES IN A COOPERATIVE BOUND BY A STIPULATION TO WHICH PURCHASER WAS NOT A PARTY; STIPULATION RESTRICTED THE NUMBER OF BOARD MEMBERS WHO COULD BE ELECTED BY HOLDERS OF UNSOLD SHARES)

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ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH.

The First Department determined the down payment bearing interest at the rate agreed to in the (real estate) contract was the exclusive remedy. The court should not have awarded interest at the statutory rate:

The contract's terms, requiring that the down payment be placed in an interest-bearing account, so that the party entitled to the down payment would receive compensation for the deprivation of its use of the money in the form of accrued interest, were sufficiently clear to establish that interest paid at the statutory rate was not contemplated by the parties at the time the contract was formed and that the amount escrowed, including interest earned, should be the exclusive remedy to the wronged party … . Ithilien Realty Corp. v 176 Ludlow, LLC, 2016 NY Slip Op 04002, 1st Dept 5-24-16

CIVIL PROCEDURE (ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH)/CONTRACT LAW (ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH)/REAL ESTATE (ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH)

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INJURY IN FALL IN EMPLOYER’S PARKING LAW AROSE FROM EMPLOYMENT.

The Third Department determined injury from a trip and fall in the employer's parking lot was covered under the Workers' Compensation Law:

“To be compensable under the Workers' Compensation Law, an injury must have arisen both out of and in the course of a claimant's employment” … . Moreover, “[w]hile on the employer's premises, going to or coming from work is generally considered an incident of the employment” … .

Here, the record reveals that claimant tripped and fell in the employer's parking lot as she was preparing to leave at the end of her shift. Thus, there is substantial evidence in the record to support the Board's determination that claimant's injury arose out of and in the course of her employment … . Matter of Swartz v Absolut Ctr. for Nursing & Rehab, 2016 NY Slip Op 03937, 3rd Dept 5-19-16

WORKERS' COMPENSATION LAW (INJURY IN FALL IN EMPLOYER'S PARKING LAW AROSE FROM EMPLOYMENT)

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FALL FROM LADDER WHILE SETTING UP AUDIOVISUAL EQUIPMENT NOT COVERED BY LABOR LAW 240 (1).

The First Department determined plaintiff's fall from a ladder while setting up audiovisual equipment was not covered by Labor Law 240 (1):

While the work that the injured plaintiff was doing immediately before his accident should not be viewed in isolation in determining whether he has a potentially viable claim under Labor Law § 240(1) … , the motion court correctly found that the his work was outside the scope of activity protected by that statute. Plaintiff, a lighting engineer, fell off a ladder while attempting to replace a gel that altered the color of one light on a temporary lighting stand secured to the floor by sandbags. The work performed by plaintiff and his employer entailed moving audiovisual, staging and lighting equipment into a hotel ballroom, assembling, setting up, and positioning the equipment as necessary for its use in an event, and removing it after the event ended. There is no evidence that any of this work “altered” or caused a substantial, or indeed any, physical change to the building … . Royce v DIG EH Hotels, LLC, 2016 NY Slip Op 03985, 1st Dept 5-19-16

LABOR LAW (FALL FROM LADDER WHILE SETTING UP AUDIOVISUAL EQUIPMENT NOT COVERED BY LABOR LAW 240 (1))

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DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION.

The First Department, in a full-fledged opinion by Justice Kapnick, over an extensive two-justice dissent, determined, under the facts, the trial court abused its discretion when it denied, without a hearing, defendant's motion to present expert opinion evidence concerning the science of false confessions:

First, there is no dispute that Dr. Drob concluded that defendant exhibited traits such as, “borderline intellectual functioning, cognitive, social and emotional immaturity, severe deficits in reality testing and deficits in the capacity to understand the actions and intentions of others, deficits in his capacity to cope with interpersonal stress, anxiety, depression, dependency, passivity and a desire to please others, and a concomitant tendency to rely on others for direction and support.” There can also be no dispute that these particular mental conditions and personality traits are ones that research studies have linked to false confessions, and that the Court of Appeals has recognized this link (Bedessie, 19 NY3d at 159 …).

Second, certain conditions of the interrogation suggest that defendant could have been induced to confess falsely to the crimes at issue. The defense urges that the detectives' interrogation employed a variety of techniques that scientific research has shown to be highly correlated with eliciting false confessions. …

Finally, this is a case … that turns on the accuracy of defendant's confessions.  People v Evans, 2016 NY Slip Op 03988, 1st Dept 5-19-16

CRIMINAL LAW (DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)/EVIDENCE (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)/FALSE CONFESSIONS (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION).EXPERT OPINION EVIDENCE (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)

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COURT OF CLAIMS LACKS JURISDICTION WHERE MONEY DAMAGES ARE MERELY INCIDENTAL TO THE CLAIM.

The Third Department determined a prisoner's lawsuit alleging false imprisonment based upon mistakes in sentencing was properly dismissed because the Court of Claims lacked jurisdiction:

“While jurisdiction reposes in the Court of Claims where the essential nature of the claim against defendant is to recover money, it does not lie where monetary relief is incidental to the primary claim” … . Here, we agree with the Court of Claims that it lacks subject matter jurisdiction on claimant's false imprisonment claim, inasmuch as his primary argument is that he is currently being confined unlawfully due to errors in resentencing and that any claim for related damages is incidental to this primary argument. Therefore, the claim for false imprisonment was properly dismissed for lack of jurisdiction. Jackson v State of New York, 2016 NY Slip Op 03938, 3rd Dept 5-19-16

CIVIL PROCEDURE (COURT OF CLAIMS LACKS JURISDICTION WHERE MONEY DAMAGES ARE MERELY INCIDENTAL TO THE CLAIM)/COURT OF CLAIMS (COURT OF CLAIMS LACKS JURISDICTION WHERE MONEY DAMAGES ARE MERELY INCIDENTAL TO THE CLAIM)

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